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923 F.

2d 1536
32 Fed. R. Evid. Serv. 336

UNITED STATES of America, Plaintiff-Appellee,


v.
Simon GABAY, Defendant-Appellant.
Nos. 89-6059, 89-6061.

United States Court of Appeals,


Eleventh Circuit.
Feb. 21, 1991.

Jay R. Moskowitz, Coconut Grove, Fla., for defendant-appellant.


Dexter W. Lehtinen, U.S. Atty., Mayra R. Lichter, Linda C. Hertz, Judith
Kozlowski and Lynne W. Lamprecht, Asst. U.S. Attys., Miami, Fla., for
plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and PECK* ,
Senior Circuit Judge.
DUBINA, Circuit Judge:

Appellant, Simon Gabay ("Gabay") appeals his convictions by a jury of


counterfeiting traveler's checks (violation of 18 U.S.C. Sec. 371 and Sec. 513)
and bond jumping (violation of 18 U.S.C. Sec. 3146(a)(1) and Sec. 401(3)).1
On appeal, Gabay asserts numerous challenges to his convictions including: (1)
the joinder of his two indictments for counterfeiting and bond jumping caused
undue prejudice; (2) the admission of the transcript of the prior testimony of a
deceased witness was improper since Gabay was unable to cross-examine; (3) a
government witness's improper reference to Gabay's silence constituted
reversible error; (4) an aura of prejudice denied him a fair trial; (5) the trial
court erred in allowing deliberations and verdict by an eleven-member jury
without full inquiry; and (6) a sentence of 60-months on the charge of criminal
contempt was outside the bounds of the sentencing guidelines and

unreasonable. We find these claims without merit, and, accordingly, affirm


Gabay's convictions and sentences.
I. BACKGROUND
2

Gabay was the coordinator of a group that manufactured and attempted to


distribute nearly $40 million of counterfeit traveler's checks. Gabay and nine
others were arrested after selling over $1 million in counterfeit traveler's checks
to an undercover officer. Eight of the defendants pled guilty prior to trial and
entered into cooperation agreements with the government. Gabay and
codefendant, Lawrence Schmalholz, were set to proceed to trial on February 21,
1989. Shortly before trial, Gabay fled.2 Gabay left behind a videotape
explaining the reasons for his flight. On March 9, 1989, Gabay was found in a
luxury apartment in Venezuela, hiding in a bookcase. Subsequently, he was
indicted for bond jumping. On June 12, 1989, the district court joined the
indictments and Gabay proceeded to trial on the counterfeiting and bond
jumping charges.

Soon after jury deliberations commenced, the district court halted them and
held a hearing regarding possible juror misconduct. Based on the evidence
presented at the hearing, the district court concluded one juror had disobeyed
the oath not to speak about the case or form an opinion regarding Gabay's guilt.
The district court, therefore, dismissed the juror and, over a defense objection,
continued the deliberations with eleven jurors. A motion for a new trial on this
issue was denied. Following the two-week jury trial, Gabay was found guilty of
the counterfeiting and bond jumping charges. After a lengthy sentencing
hearing, Gabay was sentenced to 111 months in prison, consisting of 51 months
incarceration for the counterfeiting conviction, and 60 months incarceration for
criminal contempt on the bond jumping conviction, to be served consecutively.

II. DISCUSSION
A. Joinder
4

Under Rule 13 of the Fed.R.Crim.P., the trial court may order two indictments
tried together if the two offenses could have been joined in a single indictment.
Whether substantive and bond jumping offenses may be joined is a question of
first impression in this circuit. Those circuits which have addressed the question
have held that those charges may be joined for trial under the proper
circumstances. United States v. Peoples, 748 F.2d 934 (4th Cir.1984), cert.
denied, 471 U.S. 1067, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985); United States v.
Ritch, 583 F.2d 1179 (1st Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58

L.Ed.2d 430 (1978); United States v. Bourassa, 411 F.2d 69 (10th Cir.), cert.
denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969). We agree with
these circuits, and find that joinder of Gabay's counterfeiting and bond jumping
indictments was permissible under the circumstances of this case.
5

This court undertakes a two-step inquiry to determine whether separate charges


were properly tried at the same time. First, the government must demonstrate
that the initial joinder of the offenses was proper under Fed.R.Crim.P. 8. Next,
we must determine whether the trial court abused its discretion by refusing to
order a severance under Fed.R.Crim.P. 14. United States v. Montes-Cardenas,
746 F.2d 771, 776 (11th Cir.1984).

Offenses may be joined if they are based on "two or more acts or transactions
connected together or constituting part of a common scheme or plan."
(Fed.R.Crim.P. 8(a)). Bond jumping and the underlying offense are "connected
together" if they are related in time, the motive for flight was avoidance of
prosecution of the underlying offense, and custody derived directly from the
underlying offense. Ritch, 583 F.2d at 1181. Gabay absconded soon after his
arrest for counterfeiting, the counterfeiting led directly to his custody, and by
his own admissions (made in a videotape left behind for the court), his motive
for flight was directly related to his impending prosecution for counterfeiting.

Gabay argues that while substantive offenses and flight offenses may be joined
under some circumstances, severance was warranted in this case based upon
Rule 14 considerations. He also argues that joinder of the substantive and flight
offenses was unduly prejudicial.

Unfair prejudice does not result when two offenses are joined if evidence
admissible to prove each offense is also admissible to prove the other offense.
Peoples, 748 F.2d at 936. Gabay fails to establish unfair prejudice since
evidence of flight is admissible to prove guilty conscience and evidence of the
counterfeiting is admissible to prove the motive for the flight. Id.

B. Deceased Witness's Testimony


9

A witness named Saul Rubin testified in February 1989 on behalf of the


government at the trial of Gabay's codefendant, Lawrence Schmalholz. Rubin
then died in May of 1989. Rubin testified that he owned a book bindery and
that he cut the sheets of traveler's checks to check size and then stored them in
his shop until Gabay picked them up. The transcript of Rubin's testimony was
admitted and read to the jury pursuant to Fed.R.Evid. 804(b)(3) & (5). Gabay

contends that the admission of Rubin's testimony was error. Determinations


regarding the admissibility of evidence are within the discretion of the district
court and should not be reversed absent an abuse of discretion. United States v.
Collins, 779 F.2d 1520, 1531 (11th Cir.1986).
10

Fed.R.Evid. 804(b)(3) permits the introduction, upon demonstrating the


unavailability of the declarant, of statements contrary to the penal interest of the
declarant.

11

There is no question that the declarant was unavailable since the witness was
dead. The statements of an unavailable declarant are deemed against penal
interests under Rule 804(b)(3) where the statements so tend to subject the
declarant to criminal liability "that a reasonable man in his position would not
have made the statement unless he believed it to be true." In applying this
objective standard, the Advisory Committee Notes to Rule 804 instruct that
whether "a statement is in fact against interest must be determined from the
circumstances of each case." 56 F.R.D. 183, 328 (1972).

12

Gabay suggests that the statements were not truly against Rubin's interests
because, by being granted immunity and cooperating with the investigation,
Rubin avoided the filing of criminal charges against him. Precise examination
of the content of Rubin's statement and the circumstances leading to its making
refutes Gabay's contention that the statement does not fit within the "against
penal interest" exception to the hearsay rule.

13

Courts closely examine the circumstances under which statements are made by
codefendants or accomplices to determine whether they are truly against penal
interests. See, United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977). 3
The rationale for this finer level of scrutiny in criminal cases is the fear that the
declarant may be acting out of a strong motive to exonerate himself by
misrepresenting his own role and degree of culpability and attempting to shift a
portion of the blame upon the codefendant. Lee v. Illinois, 476 U.S. 530, 541,
106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986). Yet, the very content of Rubin's
statement repudiates any motive to shift blame or distort Gabay's degree of
culpability. The testimony read to the jury clearly and directly implicated the
declarant in criminal conduct. Absent a showing of circumstances presenting
obvious motives for falsification, the trial court's decision to admit the
testimony of a deceased witness will not be disturbed. We find no abuse of
discretion by the district court in admitting Rubin's transcript testimony.

C. Right To Silence

14

Gabay's case agent testified at trial that shortly after Gabay's arrest, Gabay was
asked some questions which he agreed to answer. The case agent explained that
after answering several questions, Gabay stated that he did not want to answer
any more questions. A side-bar discussion immediately followed, and the jury
was instructed to disregard the statement that Gabay did not want to speak
further with the agent. Gabay moved for a mistrial and his motion was denied.

15

Gabay now argues that this reference to his silence, in front of the jury, entitles
him to a new trial. He asserts it is fundamentally unfair to simultaneously
afford a suspect a constitutional right to silence following arrest and yet allow
implications of that silence to be used against him. Doyle v. Ohio, 426 U.S.
610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Rosenthal, 793 F.2d
1214, 1243 (11th Cir.1986).

16

To warrant a new trial, an improper prosecutorial comment must be so


pronounced as to permeate the entire atmosphere of the trial and not be cured
by an instruction by the district judge. United States v. Creamer, 721 F.2d 342,
345 (11th Cir.1983); United States v. Reed, 887 F.2d 1398, 1402 (11th
Cir.1989). The trial court's prompt admonishment of the jury to disregard the
improper testimony of the agent served to cure the error. United States v.
Holman, 680 F.2d 1340, 1352 (11th Cir.1982). The strong evidence of Gabay's
guilt, combined with the trial court's prompt curative instructions, reduced the
agent's testimony, even if improper, to harmless error. Creamer, 721 F.2d at
345.

D. Aura Of Prejudice
17

Gabay seeks reversal because he claims his trial was conducted in an aura of
prejudice. The trial lasted a little more than two weeks and consisted of
seventeen volumes of trial record, yet Gabay can point to only one specific
comment from the trial court which he says unduly prejudiced him.4

18

This court held in United States v. Sorondo, 845 F.2d 945, 949 (11th Cir.1988),
and United States v. Cox, 664 F.2d 257, 259 (11th Cir.1981), that the trial court
cannot interject his or her opinion because a "jury has an obligation to 'exercise
its untrammeled judgment upon the worth and weight of testimony,' and to
'bring in its verdict and not someone else's.' " Sorondo, 845 F.2d at 949,
(quoting, United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 1241, 87
L.Ed. 1546 (1943)). No opinion was expressed in this case by the trial court
regarding any piece of evidence, nor was any comment made by the court
about the testimony of any witness. There is nothing in the court's comments

from which a jury could substitute the court's opinion for that of the jury's.
19

A trial court has broad discretion in handling a trial and an appellate court will
not intervene absent a clear showing of abuse. United States v. Gomez-Rojas,
507 F.2d 1213, 1223 (5th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46
L.Ed.2d 42 (1975). We think it is clear from a review of the record in this case
that there was nothing in the trial court's comments that was so obtrusive or
prejudicial that it denied Gabay a fair trial.

E. Eleven Jurors
20

At the close of the two-week trial, and approximately one hour after the jury
began its deliberations, defense counsel was informed by a lawyer unrelated to
the case that one of the jurors had expressed an opinion about Gabay's guilt
during a four-day hiatus in the trial. The juror's opinions were rendered prior to
the end of the government's case and before the start of the jury's deliberations.

21

As soon as the court was notified of the juror's violation of her duty not to
discuss the case with anyone, the court ordered the deliberations to cease. At
that point, the jury had deliberated for less than two hours. The court held a
hearing to make an inquiry into the possible juror misconduct. The juror's
work-place supervisor and two colleagues testified that during the break in the
trial, the juror told them certain facts about the case, including her feelings
about Gabay's guilt.5

22

After conducting this inquiry, the court requested the tainted juror, outside the
presence of the other jurors, to answer certain questions about whether she
discussed the case with anyone prior to the commencement of jury
deliberations. She denied doing so.

23

The court, then concerned about whether the juror had expressed her opinion as
to Gabay's guilt, or any other matters, to any other juror prior to deliberations,
made an inquiry of each juror. The jurors' names were selected randomly and
each was individually questioned in open court by the court, defense counsel,
and the government while the other jurors waited in the jury room. The inquest
consisted of asking each of the jurors whether or not he/she had any discussions
with anyone concerning the case prior to the start of deliberations.

24

The jurors were also asked with which jurors they ate lunch or socialized
during the trial. If any of the jurors replied that they ate lunch with or socialized
with the tainted juror, the court further investigated whether or not the tainted

juror had expressed to them any opinion as to the guilt or innocence of Gabay
or whether they had discussed the case with her or anyone else prior to the
beginning of deliberations. The court carefully inquired of each juror and made
a determination that no juror had been influenced in any way in his or her
deliberations by anything said by the tainted juror.6 The tainted juror was
excused and jury deliberations continued with eleven jurors pursuant to Rule
23(b).7
25

Gabay is essentially making two claims: 1) there was juror misconduct of such
a prejudicial nature and of such magnitude that a new trial is warranted; and 2)
the trial judge did not show good cause to continue the trial with only eleven
jurors.
1. Juror Misconduct

26

Following the procedures outlined in United States v. Yonn, 702 F.2d 1341
(11th Cir.), cert. denied, 464 U.S. 917, 104 S.Ct. 283, 78 L.Ed.2d 261 (1983),
the trial court interviewed each juror individually, reassured the jurors and
refrained from commenting on the incidents in question, and requested that
each juror refrain from discussing the court's questions with anyone. The trial
court obtained the pledges of those jurors who had spoken with the tainted
juror, that none of her comments had interfered with their ability to render a fair
and impartial verdict. Yonn, 702 F.2d at 1345. The trial court further instructed
the jurors not to discuss the voir dire among themselves. Finally, the trial court
re-obtained pledges from the remaining jurors to deliberate and base their
verdicts solely on the evidence, based on the court's instructions of the law.

27

The district court found the jury able to deliberate fairly after its voir dire, its
curative instructions, its daily observation of the jurors for several weeks, and
the jurors' unequivocal pledges to deliberate fairly. The "determination of
impartiality, in which demeanor plays such an important part, is particularly
within the province of the trial judge." Ristaino v. Ross, 424 U.S. 589, 594-95,
96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976) (quoting, Rideau v. Louisiana, 373
U.S. 723, 733, 83 S.Ct. 1417, 1422, 10 L.Ed.2d 663 (1963)); Owens v.
Wainwright, 698 F.2d 1111, 1113 (11th Cir.1983), cert. denied, 464 U.S. 834,
104 S.Ct. 117, 78 L.Ed.2d 116 (1984) ("Appellate courts reviewing a cold
record give particular deference to credibility determinations of a fact finder
who had the opportunity to see live testimony.").

28

The trial court's careful and lengthy investigation of the juror misconduct issue
put that court in the best position to determine whether or not any juror

misconduct deprived Gabay of his due process right to a fair trial. We are
persuaded that the trial court properly exercised its discretion in finding that
Gabay received a fair trial void of any prejudicial juror misconduct.
2. Eleven Jurors
29

Gabay argues that the trial court did not have "just cause" to continue the jury
deliberations with only eleven jurors. Gabay misreads the standard enunciated
by Rule 23(b). The rule explains that "if the court finds it necessary to excuse a
juror for just cause after the jury has retired to consider a verdict, in the
discretion of the court a verdict may be returned by the remaining 11 jurors."
(Emphasis added.) It is clear that there must be just cause to excuse the juror,
but that issue does not need to be decided by this court. Neither party argues
that the trial court did not have "just cause" to remove the juror,8 therefore, our
review is limited to whether the trial court abused its discretion in continuing
the deliberations with eleven jurors.

30

Rule 23(b) was amended in 1983 to remedy the problem we have here in
which, "after the jury has retired to consider its verdict and any alternate jurors
have been discharged, one of the jurors has been found to be seriously
incapacitated or otherwise found to be unable to continue services upon the
jury." Notes of Committee on the Judiciary, Senate Report No. 95-354,
U.S.Code Cong. & Admin.News 1977, p. 527. Amendments Proposed by the
Supreme Court.

31

This court has not ruled on the constitutionality of the discretionary aspect of
Rule 23(b).9 Those circuits that have ruled have concluded that Rule 23(b) is
constitutional. United States v. Stratton, 779 F.2d 820 (2nd Cir.1985), cert.
denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986); United States v.
Smith, 789 F.2d 196 (3rd Cir.1986). We agree with these courts that Rule 23(b)
is constitutional. It is clear that under appropriate circumstances twelvemember juries are not required. Williams v. Florida, 399 U.S. 78, 90 S.Ct.
1893, 26 L.Ed.2d 446 (1970).

32

It is not an abuse of discretion for the trial court to continue deliberations with
eleven jurors when a juror becomes unavailable after a lengthy trial and a
mistrial would be burdensome. In the present case, the trial court's reasons for
continuing the deliberations included a trial of long duration, numerous
exhibits, and numerous witnesses.10 There is no question that a declaration of a
mistrial would have necessitated a second expenditure of substantial
prosecution, defense and court resources; the outcome Rule 23(b) was designed

to alleviate. Accordingly, we conclude the district court was well within its
discretion in allowing deliberations to continue with eleven jurors.F. Sentencing
33

The district court sentenced Gabay to 51 months in prison for the counterfeit
charges and 60 months for the criminal contempt charge. Gabay accepts the 51month term for counterfeiting but objects to the 60-month term for criminal
contempt on the grounds that it was outside the bounds established by the
sentencing guidelines, and it was unreasonable.

34

Our review of the sentence imposed by the district court is governed by 18


U.S.C. Sec. 3742(d) and (e):

35 Consideration.--Upon review of the record, the court of appeals shall determine


(d)
whether the sentence-36

(1) was imposed in violation of law;

37

(2) was imposed as a result of an incorrect application of the sentencing


guidelines;

38

(3) is outside the range of the applicable sentencing guideline, and is


unreasonable, having regard for--

39 the factors to be considered in imposing a sentence, as set forth in Chapter 227


(A)
of this title; and
40 the reasons for the imposition of the particular sentence, as stated by the district
(B)
court pursuant to the provision of section 3553(c); or
41

(4) was imposed for an offense for which there is no applicable sentencing
guideline and is plainly unreasonable.

42 court of appeals shall give due regard to the opportunity of the district court to
The
judge the credibility of the witnesses, and shall accept the findings of fact of the
district court unless they are clearly erroneous.
(e) Decision and disposition
43
If the court of appeals determines that the sentence-44
45

(1) was imposed in violation of law or imposed as a result of an incorrect


application of the sentencing guidelines, the court shall remand the case for

further sentencing proceedings with such instructions as the court considers


appropriate;
46

(2) is outside the range of the applicable sentencing guideline and is


unreasonable or was imposed for an offense for which there is no applicable
sentencing guideline and is plainly unreasonable for the conclusions and ...

47shall set aside the sentence and remand the case for further sentencing proceedings
it
with such instructions as the court considers appropriate.
48

(3) is not described in paragraph (1) or (2), it shall affirm the sentence.

49

As the Fifth Circuit expressed, "Under these provisions, the characterization of


the alleged sentencing error is critical." United States v. Mejia-Orosco, 867
F.2d 216, 218 (5th Cir.1989), cert. denied, --- U.S. ----, 109 S.Ct. 3257, 106
L.Ed.2d 602 (1989). A sentence imposed "for which there is no applicable
sentencing guideline" will be reversed only if it is plainly unreasonable. 18
U.S.C. Sec. 3742(e)(2). On the other hand, a sentence "imposed as a result of
an incorrect application of the sentencing guidelines" must be reversed even if
reasonable. 18 U.S.C. Sec. 3742(e)(2). Findings of fact that underlie the district
court's sentence are reviewed under a clearly erroneous standard. 18 U.S.C.
Sec. 3742(d).

50

In the case before us, Gabay was convicted of criminal contempt. Within the
scope of the sentencing guidelines, the guideline applicable to criminal
contempt (18 U.S.C. Sec. 401) is Sec. 2J1.1.11 That provision stated, "the court
shall impose a sentence based on stated reasons and the purpose for sentencing
set forth in 18 U.S.C. Sec. 3553(a)(2)."12

51

The Application Note to Sec. 2J1.1 expounds:

52
Because
misconduct constituting contempt varies significantly and the nature of the
contemptuous conduct, the circumstances under which the contempt was committed,
the effect the misconduct has on the administration of justice, and the need to
vindicate the authority of the court are highly context-dependent, the commission
has not provided a specific guideline for this offense. See, however, Sec. 2X5.1.
53

Section 2X5.1 instructs the district court to look to analogous guidelines.13 The
district court reported during the sentencing hearing that, "there is no analogous
guideline and the court must base its sentence on the reasons and purposes as
set forth in section 2(J)1.1 of the guidelines, and the court has considered the

commission notes that misconduct constituting contempt varies significantly."


Gabay argues that Sec. 2J1.6, Failure to Appear by Defendant, is an analogous
guideline. Whether a guideline is or is not analogous to a defendant's criminal
activity is a question of law. Therefore, this court reviews the district court's
finding de novo. The trial court determined that Gabay's actions were much
more abhorrent than just failing to appear. 14 We do not find the trial court's
determination to be erroneous. The videotape, the extensive effort required for
recapture, and the fact that Gabay's flight resulted in two trials,15 are sufficient
aggravating circumstances to find that this was not a simple "failure to appear."
54

The question still remains before this court whether the 60 months sentence for
contempt was proper. Since there is no applicable sentencing guideline, we will
only reverse the trial court if the sentence imposed is "plainly unreasonable."
18 U.S.C. Sec. 3742(e)(2). It is clear from the trial court's finding of facts that
Gabay displayed a tremendous level of contempt for the court and the federal
criminal process. We are therefore persuaded that the sentence of 60 months for
criminal contempt was not "plainly unreasonable."

55

In conclusion, Gabay's convictions and sentences are AFFIRMED.

Honorable John W. Peck, Senior U.S. Circuit Judge for the Sixth Circuit, sitting
by designation

The indictment for bond jumping included a charge for bond jumping (violation
of 18 U.S.C. Sec. 3146(a)(1)) and a charge for criminal contempt (violation of
18 U.S.C. Sec. 401(3)). Gabay was found guilty on both counts. The district
court merged the two counts, so Gabay was sentenced only for criminal
contempt

The trial of Mr. Schmalholz was conducted as scheduled and resulted in a


verdict of not guilty. One of the government's witnesses was Saul Rubin, who
died shortly after the trial

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the
Eleventh Circuit adopted as binding precedent the decisions of the former Fifth
Circuit issued before October 1, 1981

At one point in the trial the district court asked defense counsel, "Who is the
next in the cast of character witnesses?" [R13-36]

The work supervisor testified that the juror had said Gabay was guilty. The

supervisor then brought these comments to the attention of the lawyer who
contacted Gabay's counsel. The juror's colleagues testified that the juror told
them someone in the case had a baby blue Rolls Royce and that she had learned
the difference between real and counterfeit traveler's checks because she had
felt the counterfeit checks
6

The portrait of the juror which emerged from the inquest was of a person who
appeared flighty and not taken seriously by her work colleagues or fellow jurors

Fed.R.Crim.P. 23(b) states:


Juries shall be of 12 but at any time before verdict the parties may stipulate in
writing with the approval of the court that the jury shall consist of any number
less than 12 or that a valid verdict may be returned by a jury of less than 12
should the court find it necessary to excuse one or more jurors for any just
cause after trial commences. Even absent such stipulation, if the court finds it
necessary to excuse a juror for just cause after the jury has retired to consider
its verdict, in the discretion of the court a valid verdict may be returned by the
remaining 11 jurors.

When the court held its hearing to determine whether the tainted juror should
be removed, counsel for Gabay insisted that there was just cause. He asserted,
"We cannot leave that woman on the jury. You can't its clear." [R16-1623]

This court in United States v. Wilson, 894 F.2d 1245 (11th Cir.1990), affirmed
a district court's decision in which a juror was dismissed under Rule 23(b). The
court failed to rule on the constitutionality of the rule since the arguments were
first raised on appeal. Cotton v. U.S. Pipe & Foundry Co., 856 F.2d 158, 162
(11th Cir.1988) (Claims not raised in the trial court may not be raised for the
first time on appeal)

10

The trial consisted of over 50 exhibits, over 20 witnesses, and over 100 hours of
trial time

11

This section was amended effective November 1, 1989. The amended language
was not given retroactive affect, and thus, is not considered for purposes of this
opinion. Gabay was originally sentenced on September 25, 1989

12

Section 3553(a)(2) reads as follows:


(2) the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;


(C) to protect the public from further crimes of the defendant; and
(D) to provide defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner.
13

The wording of Section 2X5.1 is as follows:


If the offense is a felony or Class A misdemeanor for which no guideline
expressly has been promulgated, apply the most analogous offense guideline. If
there is not a sufficient analogous guideline, the provisions of 18 U.S.C. Sec.
3553(b) shall control.
Section 3553(b) provides as follows, "In the absence of an applicable
sentencing guideline, the court shall impose an appropriate sentence, having
due regard for the purposes set forth in [18 U.S.C. Sec. 3553] subsection (a)
(2)."

14

The trial court concluded:


[The] extensive aggravating factors in your case, including but not limited to
the videotape that you sent to the court in which you recite all the reasons you
are not appearing for trial, none of which were acceptable to the court, merely
were self-serving statements and demonstrated no respect for authority nor the
court system.
Also, considering the extensive efforts that were necessary in order to have you
appear in court and that you willfully and deliberately disobeyed a court order
to appear when summoned to court.... [R17-45, 46]

15

The trial of Gabay's codefendant, Mr. Schmalholz, and Gabay's own trial